Employers generally use reference checks to verify or gather information about job applicants. Despite the usefulness of reference checks, employers that are asked to provide references may be legitimately concerned about defamation lawsuits by former employees if negative information is provided in response to a reference request. A detailed discussion of these legal issues is available.
To deal with employers' reluctance to provide information about former employees, a number of states have enacted laws “immunizing” employers against employee claims over such disclosures. The protections provided by these immunity laws are from claims for defamation of character—libel and slander. The District of Columbia has not enacted a reference immunity law. However, the District of Columbia Court of Appeals has held that a release from liability may shield an employer from liability when providing a negative reference (Woodfield v. Providence Hospital, 779 A.2d 933 (D.C. Ct. App. 2001)).
In this case, the employer's handbook contained a provision that the employer would release only employment dates and position title in response to reference requests. However, after a former employee signed a release in connection with a reference request from a prospective employer, the employer provided a negative reference. The former employee then sued, alleging defamation. The court rejected her claim, ruling that the former employee consented to the reference and that she failed to show that the employer acted with malice when it provided the negative information.
Practical advice. Employers in the District of Columbia that choose to give references should observe the following precautions: